16 S.E. 414 | N.C. | 1892
The facts are stated in the opinion. The court instructed the jury that the plea of "former acquittal" could not be sustained, because the warrant issued by the justice of the peace contained no charge. The words used therein that the defendants did "assault and strike" the prosecutor are sufficient. We learn, however, that the ruling was made upon the ground that the warrant did not recite that it was issued upon a "sworn" complaint.
In S. v. Bryson,
The court also erred in charging that "if J. M. Price, the other defendant, started towards Austin with the nail-puller in his hands, and Austin saw him and was thereby put in fear, then J. M. Price, was guilty," for this withdraws from the jury J. M. Price's testimony that he took no part in the fight, but when he saw his father and Austin engaged he started towards them to separate them and with no purpose to take any part in the difficulty; that he did not draw the nail-puller in a striking attitude, and neither threw it nor attempted to do so, and was not conscious of having it in his hand until his attention was called to it, when he immediately dropped it. Though J. M. Price started towards Austin with the nail-puller in his hands, if he neither assaulted with it nor attempted to do so, he would not be guilty, even though the prosecutor may have been put in fear by the sight of the nail-puller which the defendant unconsciously had in his hands without any intention *449 of using it. The defendant's guilt depends upon what he did, and not upon an erroneous impression of the prosecutor as to what his intentions were.
ERROR.
Cited: S. v. Albertson,
(706[)]